TaxTMI 
TaxTMI 
TaxTMI 
2022 (2) TMI 223
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....the original assessment order, hence there is no question of change of opinion. 4. The Ld. CIT(A) failed to observe the decision in the case of A.L.A Firm Vs Commissioner of Income-Tax (102 ITR 622 Mad), wherein the Hon'ble High court, Madras held that the statute does not require that the information 'must be extraneous to the record. It is enough if the material, on the basis of which the reassessment proceedings are sought to be initiated, came to the notice of the Income -tax Officer subsequent to the original assessment. 5. The Ld. CIT(A) failed to appreciate the facts that the assessee had not expressed his objection for re-opening the assessment at any point of time during the assessment proceedings. 6. For these and other reasons that may be adduced at the time of hearing, the order of the CIT(A) may be cancelled and that of the Assessing Officer be resorted." 3. The brief facts of the case are that the assessee is a civil contractor, filed its return of income estimating his income at 8% of the total turnover u/s. 44AD. The case was selected for scrutiny to examine refund claim of TDS and the regular assessment was completed on 31.10.2012 accepting the incom....
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....s. 148 of the IT Act, 1961. It is for Income Tax Department to assess or reassess the case in the light of primary facts and not for the assessee to act as his own AO. As can be seen from the original assessment order and the reasons for reopening furnished by the AO and the comments of AO in the remand report, the details relied upon by the AO were fully present in the assessment record. There appears to be no new information corning to AO and from the facts and circumstances it also appears that there was no apparent failure on part of assessee to disclose true facts. In light of above case laws and facts and circumstances of the case, it appears that reassessment proceedings are more in nature of review and change of opinion and hence are untenable. The relevant findings of the Ld. CIT(A) are as under: 2. Analysis and decision on the issue involved 2.1 Assessment was completed u/s. 143(3) r.w.s, 147 dated 26.02.2015. 2.2. Additions have been made on two accounts a) Excess credits in SBI Bank Account, Jyankondam of Rs. 3,87,197/- b) Cash deposit of Rs. 6,00,000/- received from wife. 2.3. Assessee has filed form no. 35 dated 30.03.2015 and grounds of appeal are as unde....
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....y the AO and is hence not sustainable. 2.7 following this a remand report doted 00.05.2019 was called for asking the AO. AC IT (OSD). Wafd-2, Perambalur to give copy of original Assessment Order passed u/s. 143(3) of the IT Act. 1901 and whether reasons for reopening are given to the assessee. 2.8 Remand report dated 13.05.2019 has been received with forwarding letter dated 24.05.2019 from Mr. B. Naveen Kumar, JCIT, Range-1, Trichy. In this report it Is stated that assessee had not requested any reason for reopening and hence none were provided to him. 2.9 On Perusal of Assessment Order shows that original Assessment Order u/s. 143(3) of the IT Act, 1901 dated 30.10.2012 was passed In a very cryptic manner and income returned of Rs. 3,41,660/- has been accepted after as AO says verification of copy of bank accounts and other documents produced That AO, Mr. P. Kubendiran, ITO, Ward-IV(2), Trichy Is same Mi P. Kubendiran who is now ITO, Ward-2, Perambalur. 3. In the remand report, the reasons for reopening are stated to be that assessee's turnover is more than Rs. 40 lakhs and he should have maintained books of accounts and that Rs. 12.44 lakhs of credit transactions In h....
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.... * ROHINTONFALINARIMAN AND NAVIN SINHA, JJ. SPECIAL LEA VE PETITION (CIVIL) DIARY NO. (S) 34277 OF 2018, OCTOBER 5, 2018 Section 80-IC, read with section 147, of the Income-tax Act, 1981 - Deductions -Special provisions in respect of certain undertakings or enterprises in certain special category States (Reopening of assessment) - Assessment year 2007-08 - Assesses was engaged in manufacture of cotton piece goods, denim, yarn, caustic soda, salt, pulp and paper, etc. - Assesses filed its return claiming deduction under section 80-IC in relation to its paper and pulp unit on basis of audit report in Form 10CCA - During scrutiny proceedings under section 143(3), Assessing Officer raised specific queries with regard to above claim which was duly responded to by assesses - Assessing Officer thus allowed a part of deduction claimed - Subsequently, Assessing Officer initiated reassessment proceedings taking a view that assesses had made excessive claim of deduction under section 80-IC - Tribunal finding that Assessing Officer had made detailed enquiries while allowing assessee's claim in scrutiny assessment, set aside reassessment proceedings initiated on basis of change of opini....
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....to a partner, who retired from firm on 1-4-1997, and claimed deduction of same as business expenditure- Assessing Officer processed return of income filed by assessee and issued an intimation under section 143(1)(a) - Later on, h& issued to assessee a notice under section 148 to reopen its assessment - Whether since reassessment was sought to be initiated on basis of return of income and enclosures thereto which were already part of record, reopening of assessment was not justified - Held, yes [Paras 8, 12 and 15] (In favour of assessee] Words and Phrases : Expression 'reason to believe' used in section 147 of Income-tax Act, 1961 3.3. What these 5 cases cited above show that as long as assessee has given truthful disclosure of the primary facts, he cannot be hit with reopening u/s. 148 of the IT Act, 1961. It is for Income Tax Department to assess or reassess the case in the light of primary facts and not for the assessee to act as his own AO. As can be seen from the original assessment order and the reasons for reopening furnished by the AO and the comments of AO in the remand report, the details relied upon by the AO were fully present in the assessment record There ....
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....eing pointed out, it was replied that audit points would be clarified from the assessee and further action would be taken"' 5. The assessee preferred an appeal and the CIT(A) Tiruchirappalli had granted total relief to the assessee in order dated 10.09.2019. Such relief was not extended based on the merits of the case but on inappropriate appreciation of facts that the reassessment proceedings were on account of changed opinion which the assessee had given truthful disclosure of the primary facts. 6. The findings of the CIT(A) is erroneous as the order failed to appreciate the conditions laid down by the Hon'ble Supreme Court in the case of M/s. Techspan India Pvt. Ltd., Civil appeal No. 2732 of 2007 dated 24.04.2018 (kindly to peruse 7th to 10th lines in para 12 of the said order) Though the order of the Hon'ble court favours the assessee, in that case the court had observed that if the records speak that the issue involved has remained untouched in the original assessment order (Techspan India Pvt. Ltd.) then it cannot be a change of opinion. It can be seen from the contents of the reassessment order that the issue of taxation u/s. 69 was never touched by the AO i....